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TL-H-^l^.  (3.  /+-,  J 


GEiNEVA    AWAED. 


SOME  OF  THE  REA^XS  WPIY  THE  SUFFERERS  OF  LOSS 
BY  "ALABAMA"  DEPREDATIONS  CANNOT  JUSTLY  BE 
EXCLUDED  BY  THE  GOVERNMENT  FROM  A  HEAIUNG 
BEFORE  THE  TRIBUNAL  CHARGED  WITH  DISTRIBU- 
TION OF  THE  AWARD,  BECAUSE  THEY  WERE  UNDER- 
WRITERS. 

FIEST. 

The  legal  right  of  the  underwriter  to  reclamation  for 
destruction  of  insured .  property ^  eqxialUj  with  that  of  the 
original  oioner  for  destruction  of  uninsured  property^  is 
indisputable.  Indeed^  the  strength  of  his  right  is  made 
the  excuse  for  his  special  exclusion. 

Tlie  contract  of  marine  assurance  is,  in  substance,  the 
same  in  all  commercial  countries,  and  it  is  distinguished 
from  other  insurance  by  two  characteristics  which  deserve 
attention. 

Immediately  upon  the  happening  of  a  certain  extent  of 
loss  or  injury,  the  marine  underwriter  pays  to  his  assured 
a  "total  loss,"  upon  the  basis  of  the  full  value  of  the  prop- 
erty lost  or  injured.  There  is  no  abatement  or  delay  for 
rccovcrv  from  savings  or  reclamations.  And  tlie  merchant 
is  supplied  with  jirompt  iudL'innity  against  serious  interrup- 
tion of  his  business  and  adventures,  as  well  as  against  loss 
of  the  specific  property  insured. 

In  corrcsponuenco  with  this  duty,  the  underwriter  ac- 
quires the  absolute  right  to  every  hope  or  possibility  of 
salvage  or  reclamation  from,  or  by  reason  of,  the  property 


or  its  destruction  or  injury.  In  sliort,  be  at  once  replaces 
to  the  orio-inal  insured  owner  the  full  value  of  his  adven- 
ture  (including,  as  a  rule,  the  cost  or  premium  of  insurance), 
and  thenceforth  becomes  owner,  with  every  right  and  lia- 
bility incident  to  that  relation.  And  as  this  legal  change 
of  ownership  may  date  back  to  tlie  fact  of  disaster  upon  the 
seas  or  on  distant  and  difficult  coasts,  its  operation  some- 
times transfers,  from  the  assured  to  liim,  heavy  burdens  of 
expense  in  addition  to  the  total  loss  paid  by  him. 

It  will  be  seen,  at  a  glance,  of  what  consequence  to  the 
merchant,  and  the  interests  of  commerce,  these  peculiarities 
of  the  contract  are.  An  open  effort  to  cancel  or  disregard 
them  would  meet  with  no  favor  in  any  commercial  court  or 
country,  or  with  ai)y  body  of  respectable  merchants.  And 
the  obligation  and  right  are  so  dependent  upon  each  other, 
and  closely  interwoven  together,  that  war  upon  the  one 
must,  in  the  end,  be  war  upon  the  other. 

That  these  duties  and  rights  of  the  underwriter  have  the 
sanction  of  elementary  and  universally  recognized  princi- 
ples of  commercial  law,  will  appear  by  reference  to  the 
treatises  on  insurance  of  Mr.  Parsons,  Mr.  Phillips,  or  Mr. 
Arnould,  or  to  any  other  approved  text  book.  And  na- 
tional reclamations,  for  injury  or  destruction  to  the  insured 
property,  are  included  in  the  rights  which  thus  pass  to  the 
underwriter.  (See  Eandall  v.  Cochran,  1  Yes.  98 ;  Com. 
cgys  V.  Yasse,  1  Pet.  Rep.  193 ;  Rogers  v.  Hosack's  Execu- 
tors, 18  Wend.  Rep.  318;  Grade  v.  New  York  Ins.  Co. 
8  Johns.  Rep.  237.)  In  the  language  of  Mr.  Webster: 
"There  is  no  more  universal  maxim  of  law  and  justice 
"  throughout  the  civilized  and  commercial  world,  than  that 
"an  underwriter,  who  has  paid  a  loss  on  ship  or  merchan- 
"dise  to  the  owner,  is  entitled  to  whatever  may  be  received 
"  from  the  property.  His  right  accrues  by  the  very  act  of 
"payment.  And  if  the  property  or  its  proceeds  be  after- 
"  wards  recovered,  in  whole  or  in  part,  whether  the  recov- 
"ery  be  from  the  sea,  from  captors,  or  from  the  justice  of 
"  foreign  states,  such  recovery  is  ibr  the  benefit  of  the  un- 
"derwriter"  (4  Webster's  Works,  page  156j. 


C  t«*  «••  • 


•      .    .    •     « 


It  is  hardly  neceesarj  to  add  that  such  a  contract,  so 
well  and  widely  known,  and  so  clearly  defined  in  law  and 
usage,  and  the  parties  to  which  are  so  competent  to  guard 
•  their  own  interests  in  the  making  it,  is  not  the  proper  sub- 
ject of  violation  or  ex  7)0st  facto  perversion.  Every  risk 
underwritten  during  our  civil  war  was  underwitten  with 
full  knowledge,  on  the  part  of  both  merchant  and  under- 
writer, of  these  elemental  riglits  and  duties;  a  knowledge 
which  forbids  repudiation  of  them  by  either  party,  or,  we 
may  add,  by  the  Government  which  assumed  to  protect  them 
both. 


SECOND. 

The  trust  or  agency  of  the  Government  of  the  United 
States^  in  the  presentation  and  collection  of  the  claims,  is 
^  i       equally  undeniable. 

^  It  is  tlie  duty  of  a  civilized  Government  to  seek  redress, 

s;^        for  its  citizens,  for  wrongs  attributable  to  other  nations. 
Hcpressing  private  effort  to  enforce  redress,  the  sovereign 
<«>,       undertakes  this  species  of  international    litigation.     And 
^       within  reasonable  bounds,  he  is  responsible  to  every  citizen 
"H        to  fairly  prosecute  his  just  rights.   The  theory  that  National 
intervention  is  in  any  sense  a  favor,  to  be  granted  or  with- 
held at  pleasure,  is  opposed  to  the  fundamental  principles 
of  free  representative  Government. 

The  Government  of  the  United  States,  in  express  terms, 

^      took  upon  itself  this  agency  in  behalt"  of  claimants,  under- 

t^      writer  and   uninsured   owner,  for  losses  by  "Alabama" 

depredations.     From  time  to  time,  as  vessels  and  cargoes 

y     were  destroyed  by  the  cruisers,  and  paid  for  by  underwriters, 

^     the  latter  transmitted  to  the  State  department  their  claims, 

^     accompanied  by  full  proofs  of  the  facts  of  destruction,  and 

of  the  precise  values  destroyed.    In  each  case  the  Secretary 


^' 


of  State  responded,  with  an  acknowledgment  of  their  re- 
ceipt by  him,  and  a  substantial  acceptance  of  the  trust  or 
duty  of  transmitting  the  claim  "to  the  United  States  Min- 
ister at  London,  with  a  view  to  such  reparation  as  may  be 
justly  due."  (See  letters  of  Hon.  Wm.  H.  Seward,  Secre- 
tary of  State,  to  Underwriters,  from  October,  1803,  onward, 
throughout  the  period  of  depredation.)  And  lest  any 
claim  should  fail  to  be  so  intrusted  to  this  agency,  the 
State  department,  by  circular  or  notice,  dated  September 
22d,  1865,  requested  all  other  claimants,  ''without  any 
delay,"  to  "  forward  to  this  department  statements  of  their 
claims." 

Certainly  it  h  not  to  be  questioned  that  the  Govern- 
ment received  from  the  "Alabama"  claimants,  under- 
writer and  uninsured  owner,  their  claims,  in  a  manner  and 
upon  terms,  precluding  denial  of  the  trust  and  agency. 
The  claims  were  private  propert}^,  not  available  to  the 
Government  for  any  purpose  other  than  to  duly  advo- 
cate them,  as  representative  of  the  claimants.  And 
from  the  time  of  receiving  the  first  claim,  in  the  fall  of 
1863,  down  to  the  final  award,  the  Government  distinctly 
occupied  towards  the  claimants  that  precise  relation, 
without  suggestion  to  them  of  a  pretense  on  its  part  to  the 
contrary. 

The  Government  had  not,  and  could  not  have,  a  trace 
of  title  to  either  of  the  merchant  ships  or  cargoes  destroyed, 
or  to  any  reclamation  for  the  destruction.  Every  claimant 
had  the  clear  right,  and  was  by  all  action  of  the  Govern- 
ment toward  him  rightly  induced,  to  regard  the  Government 
as  his  representative,  and  to  rely  upon  its  good  faith  in  that 
capacity. 

In  discharge  of  this  duty  of  agent  or  representative 
of  private  claims,  the  Government,  as  it  received  them, 
did  transmit  them  to  the  United  States  Minister  at  London, 
and  cause  them  to  be  presented  and  ui-ged  against  the 
British  Government.  As  so  transmitted  and  urged,  they 
were  specific  claims  of,  and  iiv  the  name  of,  the  private 
claimants,  underwriter  as  well    as    uninsured    owner,  for 


5 

destruction  of  specific  private  property,  with  details  of  de- 
strnctiun  and  values  destroyed  ;  and  they  were  by  the 
Government  of  the  United  States,  to  and  against  the 
British  Government,  formally  and  solemnly  declared  and 
insisted  npon  as  "just  and  valid."  (See  the  Diplomatic 
correspondence.) 

In  addition  to  these  direct  private  claims,  tlierc  after- 
ward grew  np  or  were  brought  forward  other  claims,  on 
the  part  of  the  Government  itself,  for  war  expenses  and  the 
like,  and  on  the  part  of  citizens,  for  increased  cost  of  in- 
surance and  the  like,  all  which  were,  and  throughout  the 
proceedings  were  treated  as,  "indirect  claims"  for  conse- 
quential damages.  It  was  not  pretended  or  suggested  tliat 
these  displaced  the  direct  claims.  On  the  contrary,  they 
were  stated  as  supplementary  or  additional  grievances,  for 
which  other  or  additional  reparation  could  be  asked.  And 
it  would  be  safe  to  challenge  the  production  of  any  com- 
munication by  the  Government  of  the  United  States,  to 
either  the  British  Government  or  private  claimants,  which 
supports  the  idea  that  the  private  claims  were  so  displaced. 

Shortly  before  the  making  of  the  "  Alabama  "  treaty, 
President  Grant,  in  his  message  (December  5,  1870), 
recomrended  to  Congress  a  purchase  from  ("settlement" 
with)  these  private  claimants,  "  so  that  the  Government 
shall  have  the  ownership  of  the  pri'vate  claims^  as  well  as 
the  responsible  control  of  all  the  demands  against  Great 
Britain,"  Such  an  official  recognition  by  the  Government, 
of  the  true  "  ownership,"  as  distinguished  from  "  responsi- 
ble control,"  should,  of  itself,  estop  the  Government  from 
disavowal  of  either. 

The  claims  thus  specifically  made  by  and  received  from 
claimants,  underwriter  and  uninsured  owner,  and  presented 
€0  nomine  against  Great  Bi'itain,  were  beyond  question,  by 
the  record  of  the  Government  and  between  the  two  Gov- 
ernments, as  well  as  in  the  minds  of  ail  men,  part,  and  a 
substantial  part,  of  the  "claims  growing  out  of  acts  com- 
mitted by  the  aforesaid  vessels,  and  generally  known  as  the 
Alabama  claims,"  which,  by   the   terms  of  the  treaty  of 


6 


Washington,  were  "referred  "  to  the  Tribunal  of  Arbitra- 
tion.    (See  article  1  of  the  treaty.) 

Accordingly  these  claims,  as  claims  of  private  claimants, 
whether  underwriter  or  uninsured  owner,  and  with  the 
proofs  supplied  by  them,  were  laid  before  the  Tribunal  and 
there  advocated,  by  the  representatives  of  the  United  States, 
as  grounds  of  pecuniary  allowance  of  damage  to  be 
awarded  against  Great  Britain.  The  proceedings  before 
the  Tribunal,  the  cases  and  arguments  on  either  side,  and 
the  deliberations  and  rulings  of  the  arbitrators  upon  them, 
deal  with  the  private  claims  in  harmony  with  this  idea. 
Respect  for  our  country  and  for  ourselves  as  citizens  forbids 
us  to  attribute  to  the  Government  or  its  representatives  a 
purpose  to  deal  with  them  otherwise;  to  make  an  insincere 
exhibit  of  the  claims  in  order,  not  to  have  them  allowed 
and  paid,  but  to  obtain  by  means  of  them  money  for  wholly 
different  uses. 

If  it  were  supposable  that  such  a  pnrpose  was  enter, 
tained,  it  was  a  secret  purpose,  so  far  as  regarded  the  court 
and  its  record,  and  Great  Britain  and  the  claimants.  It 
would  be  unjustifiable  toward  each  and  all  of  them,  and 
could  have  no  proper  place  in  or  bearing  upon  the  proceed- 
ings, and  no  possible  relation  to  the  award,  otherwise  than 
as  ground  for  vacating  it. 


THIRD. 

The  case  presented  hy  the  Government  of  the    United 

States  before  the  Tribuncd lilainly  shovjs  the  different  lands 

of  elaim  in  detail^  and  which  of  them  were  -presented  by  the 

Government  in  its  own  right,  and  which  as  representative 

for  private  claimants. 

The  claims,  as  stated  by  the  American  Commissioners, 
may  be  classified  as  follows:  (Ist.)  "The  claims  for  direct 
"  losses  growing  out  of  the  destruction  of  vessels  and  their 


"cargoes  by  the  insurgent  cruisers."  (2d.)  National  ex- 
pcnditures.  (3d.)  Loss  by  transfer  of  commercial  marine 
to  the  British  flag.  (4111.)  Enhanced  payments  of  insurance 
(premiums).  And  (oth)  cost  of  prolongation  of  the  war. 
(See  Case  of  United  States,  part  6.) 

"The  claims  for  direct  losses  growing  out  of  tlie  de- 
"  struction  of  vessels  and  their  cargoes  may  be  furtlier  sub- 
"  divided  into:"  (1st.)  Claims  for  destruction  of  Govern- 
ment property  ;  (2d.)  CLaims  for  the  destruction  of  prop- 
erty under  the  flag  of  the  United  States  ;  (3d.)  Claims  for 
injuries  to  persons  growing  out  of  destruction  to  vessels. 
(See  same.) 

A  detailed  statement  was  submitted,  "showinof  the 
"  cruiser  which  did  the  injury,  the  vessel  destroyed,  the 
"  several  claimants  for  the  vessel  and  for  the  carco,  the 
"amounts  insured  upon  each,  and  all  the  other  facts" 
necessary  to  a  decision.  (See  same.)  And  in  this  state- 
ment were  contained  the  claims  of  all  claimants  for  prop- 
erty destroyed,  Mliether  underwriter  or  individual  owner, 
as  claims  held  by  them  and  prosecuted  in  their  behalf. 

It  will  hereafter  be  seen  that  the  second,  third,  fourth 
and  filth  general  divisions  of  claim,  as  stated  in  the  ease, 
were  excluded  by  the  Tribunal,  leaving  only  the  first  (for 
"direct  losses  growing  out  of  the  destruction  of  vessels  and 
"their  cargoes")  as  the  basis  of  a  recovery.  And  so  far 
from  contesting  the  right  of  underwriter  claimants  of  this 
class,  the  British  Government  conceded  that  "  the  American 
"insurance  companies,  who  have  paid  the  owners  as  for  a 
"  total  loss,  are,  in  our  opinion,  entitled  to  be  subrogated 
"to  the  rights  of  the  latter,  upon  the  well-known  principle 
"  that  an  underwriter  who  has  paid  as  for  a  total  loss,  ac- 
"  quires  the  rights  of  the  assured  in  respect  of  the  suhject- 
"  matter  of  insurance."  (See  counter-case  of  Great  Bjitain, 
vol.  2,  p.  385.) 


FOURTH. 

It  is  also  undeniable  that  the  "  gross  sum  "  awarded  hy 
the  Tribunal  teas  for,  and  only  for,  the  direct  damages 
sustained  by  the  claimants,  whether  underwriter  or  unin- 
sured owner,  for  specific  property  destroyed  by  certain 
specified  vessels. 

In  the  outset  (June  19,  1872)  the  Tribunal  decided  and 
declared  tliat  the  indirect  claims  "  do  not  constitute,  upon 
"  the  principles  of  international  law  applicable  to  such 
"  cases,  good  foundation  for  an  award  of  compensation  or 
"  computation  of  damages  between  nations,  and  should, 
"  upon  such  principles,  be  wholly  excluded  from  the  con- 
"  sideration  of  the  Tribunal  in  maMng  its  award" 

Tiicreupon  the  representative  of  the  United  States 
Government  stated  to  the  Tribunal  tliat  this  decision  against 
the  admissibility  of  claims  for  "  first,  the  losses  in  the  trans- 
"  fer  of  the  American  commercial  marine  to  the  British 
"  flag  ;  second,  the  enhanced  payments  of  insurance,  and, 
"  thiid,  tlie  prolongation  of  the  war,  is  accepted  by  the 
"  President  of  the  United  States,  as  determinative  of  their 
"judgment  upon  the  important  questions  of  public  law  in- 
"  volved.  The  agent  of  the  United  States  is  authorized  to 
"  say  that  consequently  the  above-mentioned  claims  will  not 
"  be  further  insisted  iipon  before  the  Tribunal  by  the  United 
"  States,  and  may  be  excluded  frcm  all  consideration  in 
"  any  award  that  may  be  made." 

As  a  final  barrier  against  the  possible  reappearance, 
whether  by  accident  or  design,  of  the  indirect  churns,  tlio 
Tribunal,  upon  suggestion  of  the  representatives  of  the 
British  Government,  caused  to  be  entered  upon  their  record 
(June  27,  1872)  the  declaration  "  that  the  several  claims 
for  indirect  doomages  "  "  are  and  from  henceforth  shall  be 
wholly  excluded  from  the  consideration  of  the  Tribunal^ 

It  is  not  seen  how  there  could  well  have  been  a  record 
more  clear  and  irresistible  to  the  effect,  that  not  one  dollar 
of  the  sum  awarded  was  the  result,  or  for  account,  of  the 


indirect  claims,  whether  of  the  United  States  or  its  citizens, 
or  can  lionestly  be  applied  to  their  use.  And  whatever 
claim  or  purpose  may  aim  at  such  diversion  is  far  more  de- 
cisively "indirect"  and  "inadmissible"  than  the  claims 
themselves  were  decided  to  be. 

It  then  appears  that,  by  the  decisive  act  of  the  tribunal, 
conclusive  upon  both  the  Governments  who  were  before  it, 
the  ^^consideration  of  the  trihunaV  and  the  ^'■making  its 
moarcV^  were  carefully  and  rigidly  limited  to  the  direct 
claims.  None  other  were  or  could  be  elements  of  the  sum 
awarded.  To  no  intelligent  and  honest  mind  will  it  occur 
that  any  other  can  be  admitted  to  partake  of  the  award. 
Much  less  will  it  occur  to  such  a  mind  that  the  defeated 
party  revive  the  excluded  claims  can  for  secret  use 
against  its  own  citizens,  by  any  profession  of  acceptance  of 
the  adverse  decision  from  which  there  was  no  appeal. 

What  were  the  "  direct  claims,"  which  were  thus  the 
sole  support  and  justifying  cause  of  the  award,  has  already 
sufficiently  appeared.  They  were  the  claims,  intrusted  to 
the  Government  by  private  claimants,  underwriter  and  un- 
insured owner,  for  property  directly  destroyed  by  the 
cruisers,  including  some  like  claims  (insignificant  in  amount) 
of  the  Government  itself,  for  property  of  ita  own  so  de- 
stroyed. The  damages  involved  in  them  were  the  same  as, 
by  settled  rules  of  law,  would  be  claimable  between  private 
litigants.  And  legal  rules  of  legal  right  and  property 
were  appealed  to  by  the  parties,  and  were  respected  by  the 
tribunal  in  its  proceedings  and  judgments. 

The  representatives  of  the  United  States,  in  their  case, 
presented  "  a  detailed  statement  of  all  the  claims  which 
"  have  as  yet  come  to  their  knowledge,  for  the  destruction 
"  of  vessels  and  property,"  showing  "  the  cruiser  which 
"  did  the  injury,  the  vessel  destroyed,  the  several  claimants 
"  for  the  vessel  and  for  cargo,  the  amounts  insured  on  each, 
"  and  all  the  other  facts  necessary  to  enable  the  tribunal  to 
"  reach  a  conclusion  as  to  the  amount  of  the  injury  cora- 
"  mitted  by  the  cruiser." 

The  reply  on  the  part  of  the  British  Government,  con- 
2 


10 


ceded  that  underwriters  occupied  the  place  of  their  assured, 
and  were  entitled  to  the  same  reclamation  as  would  have 
been  due  to  the  original  owner  if  uninsured,  but  insisted 
that  in  some  instances  both  had  been  admitted  as  claimants 
for  the  same  loss. 

And  this  allegation  was  met,  on  the  part  of  the  United 
States,  with  the  statement,  that,  as  prepared  and  submitted, 
the  list  of  claims  exhibited  the  valiies  destroyed,  and  "  the 
"  several  claimants  "  for  such  values  or  any  parts  of  them, 
and  that  "  a  simple  examination  of  the  papers "  would 
show  where  "  such  double  claims  were  made,  and  it  will 
"  be  found  that  very  few  if  any  of  such  claims  exist,  ex- 
"  cept  in  case  of  some  of  the  whaling  ships  which  were 
"  destroyed  by  the  Shenandoah,  there  being  none  of  this 
"  class  of  double  claims  in  the  case  of  merchant  ships  or 
"  property  destroyed  on  merchant  ships." 

Thus  it  is  matter  of  record,  that  before  this  great  inter- 
national Tribunal,  not  only  were  the  claims  of  underwriters 
presented  against  Great  Britain,  as  entitled  to  allowance  and 
payment,  but  they  were  by  the  latter  conceded  to  be 
rightful  claimants  for  the  values  insured  by  them.  And 
the  record  moreover  contains  the  statement,  on  the  part  of 
the  Government  of  the  United  States,  that,  with  few  and 
unimportant  exceptions,  the  other  direct  claims  presented 
by  it  were  not  in  conflict  with  those  of  the  underwriters. 

A  tribunal  like  this,  composed  as  it  was,  and  proceed- 
ing to  deal  before  the  civilized  world  upon  matters  of  dif- 
ference between  two  great  commercial  nations,  would  not 
have  been  the  fitting  place  to  venture  upon  defiance  of 
universally  recognized  principles  of  commercial  law.  The 
experiment  would  have  been  dangerous  in  its  effect  upon 
the  award,  as  well  as  upon  the  reputation  of  those  who 
tried  it. 

The  Tribunal,  after  hearing  the  proofs  and  arguments, 
finally  adjudged  Great  Britain  responsible  for  the  property 
destroyed  by  the  "  Alabama,"  "  Florida,"  and  "  Shenan- 
doah," and  their  tenders,  limiting  the  responsibility  for  the 
"  Shenandoah,"  to  the  period  after  her  arrival  at  Melbourne. 
And  this  adjudication,  in  harmony  with  the  entire  proceed- 


11 


ings,  was  a  strict  detailed  finding  of  separate  legal  liability, 
for  certain  acts  of  specified  vessels,  upon  the  facts  separately 
applicable  to  the  case  of  each  vessel. 

Of  necessity  and  by  the  very  tenor  and  terms  of  the 
finding,  the  idea  of  general  alliance  or  complicity  of  Great 
Britain  with  the  rebellion,  is  plainly  inadmissible  as  a 
foundation  of  the  award.  It  had  already  been  disposed  of 
by  the  amende  honorable,  in  the  treaty  itself,  accepted  by 
the  United  States,  "  for  the  escape  under  whatever  circum- 
"  stances  of  the  Alabama  and  other  vessels  from  British 
"  ports,  and  for  the  depredations  committed  by  those  ves- 
"  sels,"  and  again  by  the  express  terms  of  the  treaty  (Art.  7), 
which  defined  the  issue  to  be  "  whether  Great  Britain  has 
"  by  any  act  or  o\\ri?,&\o\\  failed  to  fulfil  a7iy  of  the  duties,''^ 
&c.,  and  finally  by  the  formal  judgment  of  the  Tribunal 
excluding  the  indirect  claims,  whose  chief  apology  or  sup- 
port must  be  found  in  that  idea.  The  case  of  the  United 
States  itself  had  defined  the  ground  of  liability  to  be,  that 
"  Great  Britain  failed  to  perform  those  duties,  both  gen- 
"  erally  and  specifically,  as  to  each  of  the  cruisers,  and  that 
"■  such  failure  involved  the  liability  to  remunerate  the 
"  United  States  for  losses  thus  inflicted  upon  them,  upon 
"  their  citizens,  and  upon  others  protected  by  their  flag." 
(See  the  Original  Case  of  the  United  States,  Part  1.) 

But  it  is  enough  to  say,  that  a  judgment  of  this  definite 
and  detailed  character  did  not  and  could  not  rest  upon  a 
foundation  of  general  or  intentional  complicity  or  alliance 
with  the  rebellion.  It  was  the  reverse  of  a  judgment  in 
favor  of  a  nation  for  war,  or  participation  in  war,  by  an- 
other nation,  and  on  the  contrary  was  in  truth,  what  every 
one  supposed  it  to  be,  a  recovery  for  specific  neglects  or 
violations  of  neutral  duty. 

The  only  task  remaining  to  the  Tribunal,  after  the  ren- 
dering of  this  judgment,  was  to  assess,  or  cause  to  be  as- 
sessed, the  damages  called  for  by  the  judgment.  This  the 
treaty  authorized  to  be  done  either  by  the  Tribunal  itself, 
wiiich,  if  it  thought  proper,  might  "  award  a  sum  in  gross^ 
'  to  be  paid  by  Great  Britain  to  the  United  States,  for  all 


12 


"  the  claims  referred  to  it "  (Article  7),  or  through  a  board 
of  assessors,  appointed  to  assess  the  amounts  in  detail. 

These  were  simply  two  methods  of  reaching  one  and 
the  same  result;  the  ascertainment  of  the  legal  direct  dam- 
ages sufiered  by  claimants,  from  destruction  of  their  prop- 
erty, by  the  vessels  for  which  Great  Britain  was  held  re- 
sponsible. That  the  choice  of  mode  involved  any  result  so 
startling  and  offensive  to  all  notions  of  plain  dealing  and 
good  faith,  as  the  extinction  or  confiscation  of  the  rights  of 
these  claimants,  or  the  conversion  to  other  uses  of  the  dam- 
ages flowing  from  the  destruction  of  their  property,  was 
never  suggested  to  the  claimants  nor  Great  Britain  nor  the 
court.  The  suggestion,  if  made,  would  have  been  sufficient- 
ground  for  adopting  that  method  which  would  most  cer- 
tainly preclude  the  possibility  of  pursuing  it.  And  no 
such  extraordinary  consequences  can,  upon  any  fair  and 
honest  construction,  attend  the  selection  between  these  two 
modes  of  assesstnent. 

The  representatives  of  the  United  States  Government 
presented  to  the  Tribunal,  as  reasons  for  preferring  the 
award  of  a  sum  in  gross,  the  lapse  of  time  since  the  losses 
were  sustained.  The  original  "  wrongs  to  the  sufferers  by 
"  the  acts  of  the  insurgent  cruisers  have  been  increased  by 
"  the  delay  in  making  reparation.  It  will  he  unjust  to  im- 
'■^ pose  further  delay  and  the  expense  of  presenting  claims 
"  to  another  tribunal,  if  the  evidence,  which  the  United 
"  States  have  the  honor  to  present  for  the  consideration  of 
"  these  arbitrators,  shall  prove  to  he  sufficient  to  enahle  them 
"  to  determine  what  sum  in  gross  would  he  a  just  compensa- 
"  tion  to  the  United  States  for  the  injuries  and  losses  of 
"  which  they  complain  "  (American  Case,  p.  480).  Increase 
of  loss  to  the  "  sufferers,"  by  delay  and  expense  of  a  sep- 
arate assessment,  and  sufficiency  of  the  proofs  submitted  to 
the  Tribunal,  are  the  arguments  put  forward  by  the  United 
States  Government,  to  induce  tlie  selection  of  a  trross  award 
by  the  Tribunal  itself. 

If  we  could  imagine  that  any,  purpose  of  confiscation  of 
the  award  or  its  proceeds  was  then  entertained,  it  certainly 


13 

was  -not  betrayed  in  this  statement  of  reasons,  which,  on  the 
contrary,  is  irreconcilable  with  such  a  purpose. 

What  were  the  "  original  wrongs  to  sufferers  by  acts  of 
insurgent  cruisers,"  for  which  Great  Britain  owed  "  repara- 
tion ? "  They  were  by  the  tribunal  adjudged  to  be,  and  to 
be  only,  the  destruction  of  specific  property  by  direct  act 
of  the  cruisers.  Who  were  the  sufferers  ?  Kone  other  than 
the  lawful  owners,  whether  underwriter  or  uninsured  owner, 
of  the  property  destroyed.  What  was  the  evidence  alleged 
"  to  be  sufficient  to  enable ''  the  tribunal  to  ascertain  the 
srross  amount  of  damao-es  to  which  these  sufferers  were  en- 
titled  ?  Simply  the  proofs  of  destruction  and  values  de- 
stroyed, supplied  by  the  private  claimants,  underwriter  and 
uninsured  owner,  to  the  Government  of  the  United  States, 
and  by  it,  as  their  agent  or  representative,  presented  to  and 
used  before  the  tribunal. 

It  is  incredible  that  this  plea  of  the  United  States  iu  be- 
half of  these  "  sufferers,"  and  this  use  of  their  rights  of  rec- 
lamation, for  their  property  destroyed,  and  of  the  evi- 
dence "  supplied  by  them,  in  support  of  these  rights,  can 
now  be  made  the  basis  of  an  arbitrary  denial  of  those  rights 
and  conversion  of  the  money  obtained  by  means  of  that 
evidence. 

Upon  the  question  of  the  amount  of  damages,  which 
should  constitute  the  gross  sum  to  be  awarded,  the  Govern- 
ment of  the  United  States  presented  to  the  tribunal  detailed 
lists  or  bills  of  particulars,  alphabetically  arranged  byname 
of  each  vessel  destroyed,  with  the  exact  original  sum 
claimed  for  that  destruction  and  interest  computed  on  this 
original  sum,  and  asked  that  the  footing  of  these  sums  and 
interest  be  the  amount  awarded. 

The  British  Government  submitted  counter-statements, 
criticising  estimates  and  items,  objecting  to  interest,  and 
arriving  at  a  less  sum  total. 

The  tribunal  decided  to  allow  interest  and,  from  the  two 
sets  of  estimates  and  statements,  arrived  at  their  own 
computation  of  damages.  And  all  items  for  "  prospective 
injuries,"  "  costs  of  the   pursuit  of  the  cruisers,"  "  double 


14 

claims  for  the  same  loss,"  and  "  gross  freights  "  exceeding 
"  net  freights,"  were  disallowed. 

In  no  case,  and  by  no  act  of  the  tribunal  or  in  its  pro- 
ceedings, was  there  a  discrimination  between  underwriter 
and  uninsured  owner.  The  legal  right  of  each  was  fullj 
recognized,  and  the  legal  damages  of  both  were  reckoned 
in  all  the  statements  and  computations.  The  only  basis 
and  test  of  computation  was  the  value  destroyed,  and  there 
was  no  practical  difference  between  these  two  species  of 
owners,  except  that  as  a  rule  the  values  claimed  by  under- 
writers were  more  accurately  stated  and  better  proved,  by 
means  of  the  documents  upon  which  they  had  themselves 
paid  the  same  values  to  their  assured. 

B}'^  this  process,  and  vvith  the  aid  of  the  evidence  sup- 
plied by  the  private  claimants,  the  tribunal  was  enabled  to 
arrive  "  at  an  equitable  compensation  for  the  damages  which 
have  heen  sustained^''  and  declared  that  "  it  is  preferable  to 
adopt  the  form  of  adjudication  of  a  sura  in  gross,  rather 
than  to  refer  the  subject  of  compensation  for  further  discus- 
sion and  deliberation  to  a  board  of  assessors."  And  it  de- 
creed "  $15,500,000  in  gold  as  the  indemnity  to  be  paid  by 
Great  Britain  to  the  United  States  for  the  satisfaction  of  all 
the  claims  referred  to  the  consideration  of  the  tribunal." 

The  record  of  the  tribunal  would  seem  too  plain  to  ad- 
mit of  reasonable  doubt  of  its  purport.  All  claims,  direct 
and  indirect,  were  before  it  for  final  determination.  The 
indirect  claims  were  in  the  outset  pronounced  against,  re- 
jected, and  excluded  from  consideration.  The  direct  claims 
were  taken  up  and  considered,  and  limited  to  the  legal 
damages  directly  caused  by  certain  specified  vessels.  The 
computation  of  tliese  damages  was  then  discussed  and  care- 
fully considered  until  (after  elimination  of  certain  duplicated 
and  indirect  items)  "  an  equitable  compensation  for  the 
damages  which  have  been  sustained  "  was  arrived  at.  And 
then  a  final  decree  was  made  awarding  this  compensation, 
and  pronouncing  such  allowance  to  be  the  end  of  all  the 
questions  and  differences  submitted. 

The  language  of  the  award  furnishes  no  apology  for  a 
contention  that  the  compensation   awarded  is  a  fund  de- 


15 


livered  to  the  Government  of  the  United  States  in  its  own 
right,  or  for  indefinite  general  account  of  all  claims,  whether 
or  not  "  presented  to  the  notice  of,  or  made,  preferred,  or 
laid  before  the  tribimal."  The  declaration  that  all  these 
claims  were  "  finally  settled,  barred,  and  inadmissible," 
■  was  simply  the  agreed  result  of  the  award  by  the  terms  of 
the  treaty  submitting  them  to  the  arbitration. 

There  is  no  room  for  equivocation  as  to  what  claims 
were  barred  as  "inadmissible,"  and  what  were  intended  to 
be  satisfied  by  the  compensation  awarded.  The  solemn 
adjudication  of  the  tribunal  having  "wholly  excluded"  the 
"  indirect"  claims  "from  the  consideration  of  the  tribunal 
in  making  its  award,"  the  Government  of  the  United  States 
recorded  its  recognition  of  the  finality  of  the  exclusion  in 
the  explicit  statement  that  the  "  above  mentioned  claims 
will  not  be  further  insisted  upon  before  the  tribunal  by  the 
United  States,  and  mav  be  excluded  from  all  consideration 
in  any  award  tliat  may  be  made."  Thenceforth,  the  indi- 
rect claims,  by  whomsoever  made,  and  whatever  their 
foundation  .or  merit,  had  no  place  in  the  proceedings,  ex- 
cept to  be  "  barred"  as  "inadmissible." 

If  it  be  true  that  an  ae-ent  received  secret  instructions  to 
prevent  counsel  from  binding  the  Government  to  any 
special  mode  of  distribution,  it  cannot  alter  the  case.  No 
sucli  instructions  were  before  the  court  or  the  adverse 
party.  Nor  could  they  qualify  the  record,  or  convert  th^ 
rights  of  private  citizens  to  public  use,  or  change  the  duty 
of  the  Government  or  its  public  position  and  action,  or 
annul  the  decree  obtained  by  it  in  the  open  light  of  day, 
upon  the  faith  of  this  position  and  action.  Neither  the 
writer  of  the  letter,  nor  the  receiver  of  it,  nor  the  counsel 
upon  whom  it  reflected,  could  control  the  court  or  its  de- 
cisions, or  the  just  construction  and  effect  of  tliose  decisions. 
The  allowance  of  certain  claims  and  rejection  of  all  others 
by  the  authorized  tribunal  at  Geneva,  stamped  upon  tlie 
money  resulting  from  this  aHowance  its  true  charactei', 
which  could  not  be  eft'aced  or  changed  by  a  department  at 
Washington,  or  by  covert  diplomacy  between  it  and  its  / 
own  sub-agent,  except  at  the  cost  of  the  national  liouor. 


16 


The  sum  awarded  was,  by  the  award  itself,  expressed  to 
be  "compensation  for  tlie  damages  sustained,"  and  these 
"damages"  were,  by  the  judgments  of  the  tribunal  and 
throughout  the  proceedings  before  it,  computed  as,  and 
limited  to,  direct  losses  by  actual  destruction  of  specific 
property,  whether  of  underwriter  or  uninsured  owner. 
And  the  choice  of  a  "  sum  in  gross,"  in  preference  to  a 
detailed  assessment,  was  not  only  advocated  by  the  Gov- 
ernment of  the  United  States  as  a  method  to  avoid  unneces- 
sary delay  and  expense,  but  is  in  the  award  described  as  a 
^\forrri  of  adjudication^ 

Having  due  regard  to  the  facts,  and  remembering  the 
avowed  purposes  for  which  it  was  asked  by  tlie  United 
States  and  selected  by  the  tribunal,  it  should  not  be  neces- 
sary to  treat  as  serious  the  idea  that  the  "form  of  adjudi- 
cation" was  designed,  or  can  operate,  to  reverse  or  nullify 
emphatic  and  deliberate  judgments  of  the  tribunal  upon 
the  diflPerent  classes  of  claim,  and  the  limits  and  character 
of  the  damages  to  be  computed,  or  to  convert  the  "equita- 
ble compensation,  for  the  damages"  which  were  allowed, 
into  a  cliarity  fund,  for  arbitrary  bestowal  upon  claims 
which  were  disallowed,  or  were  never  before  the  tribunal, 
or  originate  in  the  hope  of^such  a  bestowal. 


FIFTH. 

Mutual  underwriting  societies  stand  upon  the  same 
footing  in  all  points  of  merit  or  equity  as  uninsured 
owners. 

Leaving  out  of  view,  for  the  moment,  the  facts  and  the 
record  and  great  principles  of  right  which  forbid  exclu- 
sion, it  will  still  appear  that  there  is  not  even  the  shadow 
of  excuse  for  discrimination  against  these  societies. 

The  principal  New  iTorlt  mutual  marine  companies 
have,  as  such,  prosecuted  their  business  with  success  and 


17 

credit,  since  about  the  year  1842,  when  they  were  char- 
tered. During  that  period  of  over  thirty  years,  the  great 
number  of  interested  and  intelligent  merchants,  dealing 
with  them,  have  had  abundant  opportunity  to  test  the 
reality  and  value  of  their  mutuality  and  abundant  power 
to  correct  any  failure  to  carry  it  into  effect. 

The  plan  of  organization  is  prescribed  by  the  charters, 
and  is  perfectly  intelligible,  and  a  brief  explanation  of  it 
will  be  attempted. 

Each  society,  receiving  premiums,  undertaking  risks 
and  paying  losses  and  expenses,  transacts  its  business 
through  each  year,  and,  at  the  end  of  the  year,  a  statement 
is  made  by  the  trustees  of  the  society,  in  which  receipts  or 
assets  are  compared  with  expenditures  and  liabilities.  The 
surplus,  if  any,  is  ascertained,  and  forms  a  percentage  upon 
the  premiums  of  the  year,  and  each  dealer,  or  premium 
])ayer,  receives  a  scrip  certificate  for  his  proportionate  share 
or  percentage  of  it.  The  funds,  represented  by  this  scrip, 
remain  with  the  society  until,  by  the  yield  of  new  scrip 
from  the  business  of  subsequent  years,  the  society  can  safely 
redeem  it.  The  principal  is  then  paid  off  to  the  scrip 
holder  and  meanwhile  he  receives  six  per  cent  upon  it.  If 
the  business  of  a  later  year  proves  disastrous,  this  scrip 
(until  redeemed)  is  liable  to  make  good  the  deficiency  or  to 
abatement  on  account  of  it. 

One  of  the  New  York  societies  has,  for  many  years, 
been  able  to  pay  off  its  scrip  at  the  end  of  three  or  four 
years.  Annually,  there  has  been  an  issue  of  scrip  to  the 
dealers  of  the  last  preceding  year,  and  a  redemption  of  the 
oldest  scrip,  issued  to  the  dealers  of  the  third  or  fourth  pre- 
ceding year.  With  other  societies  the  periods  vary,  but  the 
principle  and  practice  is  the  same  in  all. 

In  neither  of  the  societies  is  there,  or  can  there  be,  stock 
or  stockholder,  or  a  dollar  of  property  not  held  for  account 
of  the  dealers  or  premium  payors.  And  that  the  account- 
ability has  been  honestly  and  scrupulously  satisfied  is  best 
proven  by  the  history  of  the  societies,  through  the  thirty 
3 


18 

years  of  their  existence,  and  their  firm  hold  upon  the  con- 
fidence of  the  merchants. 

In  truth  and  in  efiect,  these  societies  are  nothing  else 
than  organizations,  in  and  by  means  of  which  the  many 
merchants  have  combined  with  each  other  their  risks,  sav- 
ings and  reclamations.  Tliere  is  no  conceivable  just  dis- 
crimination, against  their  equity,  in  favor  of  that  of  the 
single  and  uninsured  merchant,  whose  wealth  or  great  ex- 
tent of  business  have  enabled  him  to  be  his  own  insurer, 
and  to  add  to  his  gains  what  would  have  been  the  cost  of 
insurance. 

The  aggregate  losses  and  reclamations  of  such  an  asso- 
ciation of  merchants  are  of  the  same  character,  and  entitled 
to  the  same  consideration,  as  are  those  of  their  single  fa- 
vored competitor.  Their  inability  to  separately  encounter 
risks  of  loss,  and  consequent  association  to  meet  their  risks 
collectively,  can,  by  no  possible  rule  of  justice  or  equity, 
operate  to  annihilate  their  aggregate  legal  rights.  No  rule 
of  justice  or  equity,  applicable  to  the  one  owner,  has  not 
the  same  application  to  the  combination  of  owners. 

Such  of  the   assured   as  brought  into  the  association 
"  Alabama  "  risks  have  shared,  to  the  fullest  extent,  in  all 
savings  and  reclamations  from  the  property  of  their  asso- 
ciates ;  and  an  eff'ort  on  their  part  to  exclude  these  asso- 
ciates from  the  like  participation  in  "  Alabama  "  reclama- 
tions, would  be  dishonorable  as  well  as  unlawful.     It  should 
carry  with  it  its  own  instant  condemnation.     Every  payor 
of  what  are  termed  war  premiums  to  one  of  these  societies 
burdened  the  other  dealers  (upon  inland  or  other  risks  not 
exposed  to  capture)  with  a  share  of  his  losses  and  dangers. 
And  he  has  also  received  back  from  the  common  fund,  so 
made  up  by  all  the  associates,  a  substantial  percentage  of 
all  premiums  paid  by  him.     A  demand  on  his  part,  for  the 
money  awarded  upon  claims  of  the  society,  is  opposed  not 
only  to  the  record,  but  to  every  rule  of  fair  play  and  jus- 
tice.    And  when   the   further   demand  is  made  that  the 
money,  justly  due  to  one  of  these  societies,  shall  be  made 
the  prey,  not  merely  of  a  small  part  of  those  who  have 


19 

been  associated  in  it,  but  of  similar  claimants,  who  nevci' 
dealt  with  or  were  associated  in  it  at  all,  the  demand 
reaches  monstrous  proportions  of  unreason  and  injustice. 

The  argument  that  high  rates  of  premium  were 
charged,  and  should  now  be  rectified,  is  mainly  untrue  in 
fact,  and,  in  any  event,  is  clamor  rather  than  aro-ument. 
In  the  case  of  one  of  the  largest  of  the  underwriter  claim- 
ants, the  average  rate  of  premium,  charged  upon  all  risks 
during  the  five  years  of  war,  did  not  exceed  two  and  one- 
lialf  per  cent.  The  average  rate,  upon  all  risks  (compara- 
tively few  in  number),  of  capture  only,  averaged  less  than 
two  per  cent.,  except  in  one  year  when  it  slightly  exceeded 
three  per  cent.  A  few  exceptional  cases  of  exceptional 
charge,  for  peculiarly  hazardous  risks  do  not  make  a  rule 
for  guidance.  When  the  Shenandoah  was  known  to  have 
burned  several  whaling  vessels,  and  to  be  in  pursuit  of  the 
Behrings  Straits  fi.eet,  those  who,  at  that  late  day,  wished 
to  transfer  the  imminent  danger  from  themselves  to  the 
underwriter,  could  hardly  expect  to  do  so  upon  ordinary 
terms  of  compensation.  It  wag  not  unlike  the  case  of 
one  who  delays  to  insure  his  house  until  the  block  is  on 
fire.  The  duty  of  adjusting  the  terms  of  admission  to  the 
mutual  societies  was  intrusted  to  the  proper  ofllcers,  and 
their  action,  at  the  time  and  with  the  facts  before  them,  is 
not  now  lawfully  or  properly  the  subject  of  review.  But 
the  aggregate  of  these  exceptional  cases  forms  only  a  slight 
part  of  the  aggregate  of  the  capture  risks  only.  And  in 
the  case  at  least  of  tlie  company  referred  to,  those  who 
obtained  them  received  from  the  society,  in  casli  payment 
of  losses,  sums  exceeding  the  aggregate  of  their  premiums, 
and,  in  addition  thereto,  received  dividends  for  a  large 
percentage  of  tliese  premiums.  By  actual  figures  they 
were  gainers  from  the  association,  and  should  be  the  last 
to  deny  justice  to  their  associates,  who  thus  far  have  lost 
by  the  fellowship.  And  when  truly  understood  and  pre- 
sented, it  is  found,  in  every  case,  that  the  plan  of  the  asso- 
ciation furnishes  the  only  just,  safe  and  honest  guide  for 
dealing  with  its  aftairs. 


20 


In  sliort,  the  rule  of  law  is  the  only  rule  of  equity  on 
this  subject.  The  vast  majority  of  individual  members 
have  no  security  for  their  rights,  except  through  the  asso- 
ciation, and  the  maintenance  of  its  lawful  rights.  The 
losses  paid  by  the  mutual  societies  for  "  Alabama  "  depre- 
dations, equally  with  other  losses,  fell  upon  the  entire  com- 
mon fund,  made  up  by  all  the  associates,  upon  terms  of  ex- 
press and  well  understood  contract,  requiring  the  restoration 
to  that  common  fund  of  all  savings  and  reclamations.  And 
those  who  ask  se])arate  consideration  for  themselves,  or  ask 
to  share  in  the  reclamations  of  societies  of  which  they  were 
not  members,  ask  that  to  which  they  can  upon  no  theory  be 
honestly  entitled.  Few  in  number,  but  clamorous  in  pursuit 
of  special  gain,  they  confuse  the  judgment  of  those  who 
listen  to  them.  Tiie  many  thousands,  whom  they  seek  to 
wrong,  rely  upon  the  just  and  legitimate  representation  of 
their  rights,  through  the  societies,  and  are  silent. 


SIXTH. 

Any  distrihution  of  the  sum  aicarded,  upon  tenns  ex- 
cluding legal  holders  of  rights  of  reclamation^  for  the 
damages  allowed,  from  a  fair  and  equal  hearing  before 
the  audititig  and  distributing  tribunal,  loould  be  partial, 
arbitrary  and  unjust.  It  would  be  inconsistent  with  the 
honor  of  the  nation  and  good  faith  toward  the  Tribunal 
and  Great  Britain,  as  tvell  as  toward  the  claimants.  And 
no  such  distribution  can  discharge  the  Government  of  its 
trust,  or  supply  for  its  treasury  an  acquittance  entitled  to 
respect  in  the  future. 

It  is  incumbent  upon  the  administrators  of  civilized 
Governments  to  render  to  private  citizens,  in  respect  of 
their  private  rights,  the  same  justice,  and  upon  the  same 
principles,  as  would  be  decreed  .by  courts  of  justice  between 
private  litigants.      And   in    some   instances   this   duty  is 


21 


recognized  to  the  extent  of  subjecting  national  ships  (as  is 
the  case  with  Great  Britain)  to  the  ordinary  admiralty 
jurisdiction  and  salvage  decrees,  upon  equal  terms  with 
the  property  of  private  merchants.  Anything  other  or  less 
than  this  justice  is  injustice,  and  is  subversive  of  the  system 
of  responsible  Go vernmeut,  administered  for  the  due  main- 
tenance of  law  and  order. 

If  the  gross  sum,  awarded  by  the  Geneva  Tribunal,  were 
intrusted  to  a  depositary  or  agent  other  than  a  Govern- 
ment, shielded  by  its  mere  sovereignty  from  ordinary  judi- 
cial process,  no  intelligent  mind  will  doubt  what  would 
be  the  safe  and  honest  line  of  duty  of  the  depositary.  He 
would  frankly  recognize  the  truth,  that  the  sum  deposited 
was  not  his  own  money,  nor  disposable  at  his  own  will  and 
pleasure.  He  would  examine  the  record  to  learn  what 
claims  were  before  the  Tribunal,  and  which  of  them  were 
"  excluded  "  as  "  inadmissible,"  and  which  were  "  consid- 
ered "  and  estimated  in  making  the  award. 

Finding  that,  in  express  terms,  the  Tribunal  had  limited 
its  computation  and  award  of  damages  to  speciiic  property, 
directly  destroyed  by  acts  of  specified  vessels,  he  would 
confine  his  attention  to  the  claims  of  those  asserting  title 
to  that  property  and  the  rights  of  reclamation  for  its  de- 
struction. He  would  thus  obtain  the  clear  and  reliable 
guidance  of  definite  boundaries  of  claim  and  claimant, 
outside  of  which  no  part  of  the  sum  awarded  could  justly 
or  properly  be  demanded.  If  he  found  within  those  bound- 
aries, conflicting  estimates  of  value,  or  conflicting  claims 
to  the  same  value,  he  would  insure  justice  to  the  claimants, 
and  a  safe  and  honorable  discharge  for  himself,  through 
the  intervention  of  some  competent  judicial  authority, 
proceeding  to  hear  the  parties  interested  and  to  determine 
their  respective  rights,  in  accordance  with  established  prin- 
ciples of  law. 

It  would  not  occur  to  him  to  pay  out  the  money  upon 
claims,  or  for  purposes,  which  did  not  enter  into  the  con- 
sideration of  its  award,  nor  to  warp  the  distribution  of  it 
by  prejudices  or  favoritisms  respecting  the  character  or 


'22 


condition  of  distributees.  Nor  would  he  be  advised  that  a 
process  of  judicial  distribution,  crippled  by  arbitrary  con- 
ditions, and  denying  a  fair  and  equal  hearing  to  lawful 
claimants,  would  be  pleadable  by  him  against  the  further 
demands  of  those  claimants.  If  however,  he  sought  to 
defy  or  evade  these  plain  rules  of  right  conduct,  the  at- 
tempt would  expose  him  to  speedy  correction  by  the  courts 
of  justice. 

It  is  believed  to  be  the  clear  and  unavoidable  duty  of 
the  Government  to  freely  do  what  such  a  private  depos- 
itary would  be  compellable  to  do.  It  lias  no  other  or 
greater  rightful  power  in  the  premises  than  he  wonld  bave. 
And  the  assertion  of  other  or  greater  power  would  be  pro- 
tected solely  by  the  inability  of  the  courts  of  justice  to 
deal  with  a  sovereign  wrong-doer,  and  would  be  simply 
unlawful  despotism. 

Considerations  founded  npon  capricious  or  superficial 
notions  of  irregular  equity,  in  opposition  to  conceded  fun- 
damental principles  of  legal  right,  are  inapplicable.  There 
is  no  equity,  known  to  the  law  or  to  any  court  of  equity, 
which  does  not  obey  and  respect  those  principles,  or  which, 
upon  any  pretext  whatever,  confiscates  the  property  of 
one  to  the  use  of  another,  or  permits  the  collector  of  dam- 
ages, flowing  from  the  destruction  of  sucli  property,  to  re- 
gard his  collections  as  a  fund  for  his  own  use,  or  for  ex- 
penditure upon  favorites,  or  upon  any  other  than  those 
lawfully  entitled. 

The  money  awarded  at  Geneva  is  compensation  for 
the  destruction  of  private  property,  the  ownership  of 
which  is  for  the  most  part  undisputed,  and,  where  dis- 
puted, can  be  judicially  determined.  The  collection  of 
the  money  by  the  United  States  does  not  and  cannot 
change  the  character  of  the  compensation,  nor  the  just 
legal  rights  of  the  claimants  to  it.  And  the  distribution 
of  it  is  matter  of  honor  and  good  faith,  not  of  charitable  or 
other  caprice. 

It  cannot  be  necessary  or  useful  to  combat  the  idea, 
that  misjudgment  or  misfortune,  in  the  conduct  of  business, 


23 


can  properly  entitle  to  participation  those  who  would 
othervvise  be  disentitled.  The  property  and  rights  of  the 
one  are  as  sacred  and  unimpeachable  as  of  the  otlier. 

In  proportion  as  an  underwriter  comprehended  tlie  dan- 
ger to  American  commerce  from  "  Alabama  "  depredations, 
and  the  duty  to  afibrd  relief  by  combined  effort,  he  was 
first  and  freest  in  accepting  the  risks,  with  all  perils,  rights 
and  benefits  naturally  and  justly  incident  to  such  accept- 
ance. The  course  pursued  by  him  tended  to  the  safety  of 
commerce,  and  should  not  subject  him  to  reproach  or  hos- 
tile judgment,  in  comparison  with  a  competitor  who,  for 
any  reason,  declined  or  hesitated  to  pursue  the  same  course, 
and  perhaps  changed  to  be  loser  upon  the  one  risk,  or  few 
risks,  which  he  was  induced  to  accept.  And  it  would  be 
fullv  as  iust  and  reasonable  to  make  the  same  discrimina- 
tion  between  the  uninsured  owner  of  one  ship  or  cargo  de- 
stroyed by  the  "Alabama  "  and  the  uninsured  owner  of 
many  ships  or  cargoes,  one  of  which  was  so  destroyed. 

In  trntii,  every  argument  of  tiiis  kind  simply  leads  back 
to  the  original  and  only  safe  guide  in  dealing  with  prop- 
erty questions.  Departure,  in  any  direction,  from  great 
principles  of  legal  right,  as  approved  and  administered  by 
the  courts  of  justice,  can  result  only  in  arbitrary  injustice, 
discreditable  to  the  nation,  and  injurious  to  the  best  inter- 
ests of  its  citizens. 

The  eloquent  and  unanswerable  protests  of  Senators 
Thurman,  Conkling  and  Bayard,  and  their  associates  in  the 
Senate,  and  of  llepresentatives  Poland,  Tremain,  Potter 
and  AVoodford,  and  their  associates  in  the  House,  during 
tiie  debates  of  the  first  session  of  the  forty-third  Congress, 
expose  this  injustice  so  clearly  and  fully  that  there  shoukl 
be  no  need  of  further  discussion  of  it.  And  the  declaration 
of  Senator  Ba3'ard,  that  it  cannot  prevail  except  "at  the 
cost  of  the  honor  of  the  Government  of  the  United  States," 
will  command  general  concurrence  from  those  who  take 
the  pains  to  understand  the  subject. 

Underwriter  claimants  cau  rest  assured  that  their  right 
to  a  fair  hearing,  before  the  distributing  court  or  commis- 


24 


sion,  is  supported  by  every  consideration  of  law  and  justice 
and  national  good  faith.  The  terms  upon  which  they 
undertook  tlie  risk  of  the  "  Alabama  "  depredations  un- 
doubtedly vested  in  them  the  reclamations.  They  promptly 
and  honorably  fullilled  their  part  of  the  contract  by  pay- 
ment of  the  losses  caused  by  the  depredations.  The  Gov- 
ernment, in  their  name  and  behalf,  took  charge  of  their 
reclamations,  and  has  recovered  and  collected  the  damages 
flowing  from  them.  It  cannot  deny  to  them  their  just  and 
lawful  share  of  the  damages  recovered.  If,  through  mis- 
information or  misconception,  so  clear  a  wrong  and  so 
evident  a  breach  of  good  faith  prevails  for  the  moment,  it 
will  nevertheless  remain  a  duty  and  necessity  of  the  Gov- 
ernment to  give  subsequent  redress.  Its  treasury  will  ob- 
tain, through  such  an  injustice,  no  voucher  or  acquittance 
which  can  hereafter  be  respected  or  available.  And  its 
ultimate  justice  will  not  persist  in  refusing  to  account,  for 
the  proceeds  of  private  rights,  with  those  whose  just  and 
legal  title  to  them  is  so  certain  and  clear  that  it  cannot  be 
avoided,  except  by  express  prohibition  of  access  to  the 
court  or  tribunal,  intrusted  with  distribution  of  the  proceeds. 

New  York,  February,  18Y6. 

C.  A.  HAND. 


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